### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON April 11, 2001 Sessi

on STATE OF TENNESSEE v. EARL T. JEFFERSON Direct Appeal from the Criminal Court for Shelby County No. 98-06754 Joseph B. Dailey, Judge

No. W2000-00608-CCA-R3-CD - Filed June 12, 2001

The defendant was convicted by a Shelby County jury of premed itated first degree murder and sentence d to life imprisonment without the possibility of parole. In this appeal, the defendant cha llenges the admission of three alleged hearsay statements and the suff iciency of the evide

nce . We affirm the judg

ment of the trial c

ourt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OE G. R ILEY , J., delivered the opinion of the court, in which J OHN E VERETT W ILLI AMS and R OBERT W. W EDEMEYER , JJ., joined.
A. C. Wharton, Jr., Shelby County Public Defender; MichaelJ. Johnson (at trial), N elle W. Pallme (at trial), and Tony N. Bray

ton (on appe al), Assistant Public Defenders, Memphis, Tennessee, for the appellant, Earl T. Jefferson. Paul G. S umm ers , At tor ney G ener al a nd R epo rte r; J . Ro ss D yer, A ssi sta nt A tto rney G eneral ; Willi am L . Gibbons, District Attorney General; and James M. Lammey , Jr., Assistant District Attorney General, for the appellee, State of Tennesse e.

OPINION The defendant appeals his premeditated first degree murder conviction challenging the admissibility

of three alleged hearsay statements and the sufficiency of the evidence. We conclude that one of the three challenged statements was erroneously admitted int o e vidence; however, we further conclude its admission was harmless. Since we also find the e videnc e to be sufficien t to support the conviction, the judgment of the trial court is affirmed.-2- FACTS Erica Brown was the defendant’s cousin, and the defendant stayed at her residenc

e from time to time. On July 23, 1997, Brown and he r three-year-old daughter wer e patronizing Comfort Laun dry. At approximately 9:45 p.m., the victim, Charles Cook, who lived primarily in

his vehicle which was often parked in close proximity to the lau ndr y, en ter ed t he l aun dry. The victim proceeded to Christy White, an employee of the laundry

, and requested c

hange for $1.0

0 in order to purch

ase a beverage. White provided the victim with change, and he walked toward t he vending m achine. Before reaching the machine, he stopped and inquired of Brown if he could purchase

a drink for her daughter. Brown granted the victim's request, and the victim purchased and delivered a grape soda to Brown's da ughter. The v ictim mom entarily talk ed with the girl, then h e exited t he buildin g. White testified that a couple of minutes after the victim exited the laundry, Brown ran to the counter and stated, "Did you see what that guy did?" White further testified that Brown said [the victim] was down bending on his knees outside the door, the door cracked open, of the laundromat

and he was becko

ning for her ch

ild to come toward h

im; and when she turnedaround and saw her little girl walking toward the door and saw him at the doo r, h e bac ked away. White testified that this incident made Brown upset. Brown further stated to White, "[h]e don't [sic] know what he's doing . He's messed up now. I need to

make some phone calls." After Brown used the telephone, she warned White, "[d]on't stick your head out the door about 10:30. We're going t o come back through spraying." White further testified that her [White’s] husband went to the nearby Church's Chicken parking lot, where the victim was located, and told him to never ag

ainreenter the lau ndr y. Yarico Butler, a former girlfriend of the defendant, testified that she talked with him on the phone concerning his

involvement in

the murder. She stated that the defendant requested she pick him up because he was in “trouble.” The defendant then told her that Erica Brown, the defendant’s cousin, came home

and informed him

of the incident at the laundry and demanded “something [be] done” to the victim. Brown then drove him and an acquaintanc

e to the laundry and waited in the car while they shot the victim. On cross-examination, Butler conceded that she and Erica Brown were having “problems ” with each o ther when th e incident occurred, an d Butler ple d guilty to a cha rge of harassment of Brown.
JuneaPayton, a nurse, testified that onJuly 23, 1997, sh e was driving hom

e from work with her mother and saw the victim attempt to flee from two men and fal l in the cent er of Air ways Boulevard. She then saw his two ass ailants kick him while he was on the street. The victim picked himself up and crossed the street. P ayt on heard a shot, so she turned her vehicle around and proceeded

to the victim. By the

time Payton returned, the two men were standing over th

e victim kicking him. She also observed one of the men shoot the victim while the victim was on his side. Payton was unable to positively identify the two men, but testified they

had thin builds, and one was1 According to the judgment, the defendant was born on Dece

mber 12, 1975, mak

ing him 21 years of age at the time of the of

fense. -3- approximately

18, while the other

was approximately

25. She testified th

at the young

er man actually didthe shooti ng. 1 The two men fled, and she and her mother administered CPR on the victim. The victim died at the scene from a gunshot wound. Alvin Peppers, of the Me

mphis Police Department Crime Scene Unit, testified that when he arrived on the scene, the

victim’s vehicle

was running. He further testified that the victim was found at the scene in possession of $258.65.
James Holder, a latent fingerprint examiner with the Memphis Police Department, testified that a palm print lif

ted from the victim’s vehicle match ed the defendan

t’s palm print. The defense offered the testimony of the de fendant’s grandmother, Juanita Jefferson, who testified that Yarico Butler phoned her from jail and stated that the defendant killed someone. Butler then stated, “[ h]e go ing [sic] to pay for what he done [sic] to me . . . [h]e left me alone.” Butler f ur ther stated that she and Erica Brown got in a fight, and “it had a whole lot to do with Earl [defendant].” Jefferson further testified that after she advised Butler to “ straighten th is stuff out” withthe defendant, Butler replied, “[n]o, I’m going to hurt both of themanyway I

can. I don’t care. I’m going to get my re

venge.”

I. WITNESS TESTIMONY Erica Brown did not testify at the defendant’s trial. The defendant cha lleng es the admissibility

of the following three

statements made by Brown, which were introduced through the testimony of C

omfort Laundr

y employ ee Christy Whi

te: (1) [the victim] was down bending on his knees outside the door, the door cracked open, of the laundromat and he was beckoning for her child to come toward him; and when she turned around and saw her little girl walking toward

the door and saw h

im at t he d oor , he back ed aw ay;

. . . . (2) [h]e don't [sic] know what he's doing. He' s messed up no w. I need to make some phone calls; and

. . . . (3 ) [d]on't stick your head out the door about 10:30. We're going to come ba c k through spr aying.-4-

The trial court allowe

d all three statem

ents holding they

were relevant

, non-hearsay

because they showed motive and were not offered for the truth, and if hearsay, admissible under the excited utteranceexception. Defens e cou nsel also claimed the prejudicial effect of the testimony substantially

outweighed any probative value. The trial court rejected this ground, finding the testimonywas highly probative and outweighe d an y prejudicial effect. We shall address each statement in the order they were uttered. A. First Statem

ent The tri al c our t pr ope rly h eld tha t th e fi rst sta tem ent was non -hea rsa y. He ars ay c ons titutes “a statement, other than one made by the declarant while testify

ing at the trial or

hearing, offe

red in evi dence to prove the truth o f the matter asse

rted.” Tenn. R. Ev

id. 801(c); State v. Belse r , 94 5 S.W.2d 776, 784 (Tenn. Crim. App. 1996). The first statement was not off ere d to prove that the victim was, in fact, atte

mpting to lure Br

own’s child out of th

e laundromat.As the trial court found, it was admissible to show that “[Brown] felt that he had ,” thus s howing why Brown took action. Furthermore, th

is relevant testimo

ny was not unf

airly preju

dicial to the defe

ndant. B. Second Stateme

nt The trial court properly admitted the second statement. The first two portions of

the second statement are “[h]e don't [sic] know what he's doing ,” and “[h]e' s messed up now.” These two assertions were not hearsay since they were not admitted to prove that the victim was unaware of the consequences of his actions or that he, in fact, did “mess up.” The final portion of Brown’s second statement was “I need

to make some phone calls.” We conclude it was offered to prove the truth of the matter asserted ; namely, tha t Brown intended

to call some person or persons to get assistance. Acco rdi ngly, this portion of her second statement wa s improperly admitted, unless it fell within a hearsay exception. See Tenn. R. Evid. 802. The rules of evidence provide for an excited utterance exception to the hearsay

rul e; n ame ly, “[a] statement relating to a startling ev ent or condition ma

de while the declarant w

as under the stre

ss of excitement caused by the event or condition.” Te

nn. R. Evid. 803(2).

The following cr

iteria must be proven for a statement to be admitted under the excited utterance exception: (1) there must be a startling event or condition that c

auses the stress

of excitement; (2) the statement must relate to the startling event or condition; and (3) the st atemen t must be made while the declarant was under the stress of excitement from the event or condition. State v Gordon , 952 S.W.2d 817, 820 (Tenn. 1997).-5-

We can think of few greater startling events than a parent’s perce ption tha t her y oung daughter was almost kidnapped or molested. Accordingly, we co n clude the first element was proven. When read in conte xt, Brown’s stateme

nt that she needed

to make phone calls o

bviously related to the star

tling eve nt. Accor

dingly , the seco nd elemen

t was prov

en. Wh it e testified that Brown“came runni ng” to her, whichoccurred immediately prior to this statement. Furthermore, she testified that Brown “was upset” when she made the statement. T he statementwas made while Brownw as under the stress of excitem ent of the event; t

hus, the third elem

ent was sufficie

ntly established. The trial court properly admitted this statement under the excited utterance exception to the hearsay rule. Furthermore, we conclude that this testimony was relevant because it shows that Brown, by making phone calls, inten ded to take action

against th

e victim. Th is, in turn, makes it “more probable” that Brown returned with someone else. See . Tenn. R. Evid. 401. Therefore, whether or notthe defendant wa

s the person actua

lly called is

not determinative

of its admissi

bility. Other evidence, including the defendant’s admission to Butler, indicated that it was the defendant who returned with Br

own. This testimony

was not unfairly

prejudicial to the

defendant. C. Third Stateme

nt The third statement wa

s a warning by

Erica Brown to

Christy Whi te, after Brown made a phone call or ca

lls, that she should

not “stick [her] head out the door about 10:30. We'r

e going to come back through spraying.” This statement was offer ed for its truth; namely, that Brown and another or others would be coming back and shooting. Accordingly, the statement was hea rsay and inadmissible unless it fell within a hearsay exception. See Tenn. R. Evid. 802. The prosecutor asked White the following question: “Okay. Do y ou re call i f she [Brown] came back to the scene, yourself; or

did she say – indicate that she would?” White responded that Brownwarned her they

wou ld come “through spraying.” There wa s no testimony concerning the length of time that elapse

d during Brown’ s phone call or calls, nor was there testimony concerning her demeanor

when she made the statement. Although it may have been a very short time, we are unable to s pecu lat e. A ccor din gly, the state failed to establish the proper foundation for the excited utterance exception to apply. The state additionally argued at trial and on appeal that this testimony was admissible under the co-conspirator

excepti on. The rules of evid ence except from

the general pr

ohibition against hearsay testimony “a statement by a co-conspira tor of a party during the course of and in furtherance of the conspiracy.” Tenn. R. Evid. 803(1.2)(E).However, there was no testimony concerning the identity of the personor persons whom Brown called. The testimony of Yarico Butler,

another state witness, indicated that the defendant was informed of the incident by Brown when Brown returned home. Accordingly, the state failed to establish that a conspiracy

existed at the time this statement was made.-6-

It is arguable that this third statement is admissible under the state of mind exception to the hearsay rule, which is

“[a] statement of

the declarant’s then existing state of mind . . . (such as intent

. . .)...” Tenn. R. Evid. 803(3). If so, the statement cou ld only be use

d to establish Brow

n’s “intent” to return with someone else, and not that t he defendant ac

ted in accordan

ce with Brown’s statement of intent. Tenn. R. Evid. 803(3), Advi so ry Commission Co mments; N. Cohen et al., Tennessee Law of Evidence § 8.08 [5][c] (4 th ed. 2000). However, the state did not argue this exception at trial or on appeal. Thus, we decline to address whether this statement was admissible under the state of mind exception to the hearsay rule. Regardless,

we conclude the a

dmission of this third

statement to be ha

rmless error at m

ost. The identity of the

person or persons whom Brown phoned was never established. The testimony concerning the defendant’s involvement in the s

h ooting was properly admitted through Yarico Butler, who testified that the defendant told her that he and an accomplice shot the victim whil e Brownwaite d in the getaway car. Additionally , the defendant’s palm print was found on the victim’s vehicle, which was still running when officers arrived at the scene. We, therefore, conclude that the admission of the

third statement did

notaffect the conviction. See Tenn. R. App. P. 36(b).

II. SUFFICIENCY OF THE EVIDENCE The defendant alleges the evidence was insuffi ci ent to sustain his conviction. More spe cif ica lly, he contends the e vidence does not s

ufficiently

establish that he was the perpetrator of this homicide. We disagree. A. Standard of Review When an accused cha

llenges the suff

iciency of

the evidence, th

is c ourt must review the record to determine if the evidence adduced during the trial was sufficient "to support the findings by the trier of fact of guilt beyond a rea sonabl e doubt." Tenn. R. App. P. 13(e). This

rule is applicable

to findings of guilt predicated upon direct evidence, circu mstantial evidence or a combination of direct

and circumstantial evidence. State v. Brewer, 932 S.W.2d 1,18 (Tenn. Crim. App.1996).
In determining the sufficiency of the evidence, this court does not reweigh or

reevaluate

the evidence. State v. Ca bbage , 5 71 S.W. 2d 832, 835 (Tenn.1 978). Nor may this court substitute

its inferences for those drawn by the trier of fact from circumstantial evidenc e. Lia kas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contra ry, th is court is required to afford the state the strongest legitimate view of the evidence contained in the r

ecord as well as

all reasonable andlegitimate inferences which may be drawn from the evidence. State v. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App.1995).
Because a verdict of guilt rem oves the pr esumption of innocence and replaces it with a presumption of guilt, t he accused ha s the burden in this cou rt of illus trating w hy t he evidence is-7-

insufficient

to support the verdict returned by the trier of fact. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). B. Analysis The testimony established the victim was shot within ashort distance of his vehicle, which was still running when officers arrived. The defendant’s palm print was found on the victim’s vehicle. Junea Payton w

itnessed the shooti

ng and, althoug

h she was unable to

view the face of either assailant, the defendant fit the general physical description of one of them. Further more, Yarico Butler, the defendant’s former girlfriend, testified that the defendant confessed involvement in the crime. Although the defendant attacked the credibility of Butler, it was within the jury’s province to determine credibility. State v. Oody , 823 S.W.2d 554, 558 (Tenn. Crim. App.1991) (the credibility

of the witnesses is entrusted to the sound discretionof the jury as the trier of fact). The evidence was more than sufficient to support the conviction.

CONCLUSION Based upon our r

eview of the rec

ord, we affirm th

e judgment of the

trial court.

___________________________________ JOE G. RILEY, JUDGE